5.  The applicants, Mr Gavin Kay, born in 1951, Mr Peter Armstrong, born in 1959, Mr Ian Ballantine, born in 1946, Ms Cherry Barnett, born in 1965, Mr Ian Constantine, born in 1962, Mr Christopher Cole, born in 1951, Mr Thomas Greenhalgh, born in 1956, and Mr Martin Breschinsky, born in 1960, are British nationals who live in London. Mr William Gorman, born in 1951, is an Irish national and also lives in London.
6.  The London Borough of Lambeth (“Lambeth”) owned a number of properties which were unsuitable for normal housing use. The properties formed part of the “short life” property of Lambeth, meaning that they were scheduled for demolition, redevelopment or works. Following aggressive squatting, which exacerbated the poor condition of the properties, and an increase in responsibilities on local housing authorities to provide shelter for homeless people, Lambeth began to consider a scheme under which housing associations would take over short life property and find and manage tenants until the property was required by Lambeth for demolition or redevelopment. In around 1977, Lambeth began informally licensing short life property to the London and Quadrant Housing Trust (“LQHT”), a charitable housing trust, in order that the latter could provide temporary accommodation for homeless people to whom Lambeth owed a statutory duty to arrange accommodation. However, some of the short life property could not be made suitable for use by homeless families and so, in a separate arrangement in 1979, Lambeth began to pass properties to LQHT and other bodies to use as housing for those to whom no statutory duty was owed and who would not generally be allocated housing by Lambeth. This was called the “singles scheme”. The applicants were all provided with housing under the singles scheme.
7.  Until 1986, LQHT had an informal arrangement with Lambeth which covered the properties occupied by the applicants. This arrangement was replaced by a licence in 1986, reflecting the previous arrangement and terminable on three months' notice. In 1995, the licence arrangement was replaced by individual ten-year leases of each property granted to LQHT by Lambeth. The leases were subject to a break clause allowing either party to terminate the leases early on just over six months' notice. One purpose of the grant of the individual head leases was to allow LQHT to replace its licences to the applicants with assured shorthold tenancies, which would prevent them from acquiring security of tenure under the Housing Act 1985 (“the 1985 Act”). In fact, few of the applicants agreed to enter into assured shorthold tenancies with LQHT.
8.  In 1999, Lambeth gave notice to terminate the head leases to LQHT. In November 1999, LQHT advised the applicants that the head leases had been terminated.
9.  In August 2000, Lambeth brought summary possession proceedings against Mr Kay, Ms Barnett, Mr Constantine, Mr Cole and Mr Greenhalgh (“the Kay proceedings”). They defended the proceedings on the basis that they were secure tenants of Lambeth. In August 2000, Mr Gorman brought an action against Lambeth for a declaration making the same claim. Lambeth sought an order for possession by way of counterclaim in Mr Gorman's proceedings.
10.  The applicants argued that they were tenants of Lambeth and had secure tenancies under Part IV of the 1985 Act. They argued in the alternative that an order for possession against them would breach their right to respect for their homes under Article 8 of the Convention. Lambeth argued that it was not bound by tenancies created by LQHT and applied to strike out the applicants' Article 8 defence on the grounds that it showed no reasonable ground for defending the claim.
11.  On 13 December 2002, the judge ruled that the applicants were not tenants of Lambeth and therefore had no security of tenure under Part IV of the Housing Act 1985. On 19 December 2003, following the July 2003 decision of the House of Lords in London Borough of Harrow v. Qazi [2003] UKHL 43 and on the basis of the majority view in that judgment, the judge struck out the applicants' alternative defence based on Article 8 without considering whether the specific personal circumstances arising in each of the applicants' cases rendered Lambeth's decision to seek possession disproportionate. The applicants appealed.
12.  In the meantime, possession orders were made in respect of Mr Armstrong, Mr Ballantine and Mr Breschinsky on 19 November 2003. The proceedings against them were stayed by agreement pending the outcome of the Kay proceedings.
13.  The appeal against the two rulings in the Kay proceedings was dismissed by the Court of Appeal on 20 July 2004. Auld LJ concluded (at paragraph 100):
“The fact is that Lambeth has an unqualified right to possession. And on the basis of the majority opinions in Qazi by which we are bound, that is a sufficient answer to the claim under Article 8.”
14.  However, he noted that a defence on public law grounds was possible, indicating (at paragraphs 101 and 103) as follows:
“However ... [t]he decision to bring possession proceedings was an administrative decision to which the ordinary principles of administrative law apply. Accordingly it can be challenged by judicial review and perhaps by way of defence in proceedings such as the present.
...
But that does not mean that, by the backdoor, Article 8 comes back into play as a 'relevant consideration'. Initially, as in all decisions related to housing, the particular needs of a tenant and his family will form a necessary background to the decision a housing authority has to take. And they will therefore form part of the considerations which the housing authority has to evaluate. But those considerations fall to be evaluated on ordinary administrative law principles. In the present case, no material has been put before the court to suggest that the decision was unlawful or unreasonable in the Wednesbury sense ...”
15.  The House of Lords granted leave to appeal on 22 June 2005. The Government intervened in the case in support of the applicants' Article 8 argument. On 8 March 2006, the House of Lords sitting as a committee of seven judges dismissed the appeal (see further “Relevant domestic law and practice”, below).
16.  On 28 April 2006, the county court made possession orders against each of the applicants.
17.  By section 82 of the Housing Act 1985, a secure tenant of a local authority or other public authority has security of tenure. Under section 84(1) of the Act, a court shall not make an order for possession of a dwelling house let under a secure tenancy except on one or more of the grounds set out in Schedule 2 to the Act. Section 84(2) provides that:
“The court shall not make an order for possession—
(a) on the grounds set out in Part I of that Schedule (grounds 1 to 8), unless it considers it reasonable to make the order,
(b) on the grounds set out in Part II of that Schedule (grounds 9 to 11), unless it is satisfied that suitable accommodation will be available for the tenant when the order takes effect,
(c) on the grounds set out in Part III of that Schedule (grounds 12 to 16), unless it both considers it reasonable to make the order and is satisfied that suitable accommodation will be available for the tenant when the order takes effect.”
b.The House of Lords judgment in Qazi
18.  The House of Lords judgment in Qazi is described in detail in the Court's judgment in McCann v. the United Kingdom, no. 19009/04, § 22‑25, 13 May 2008. In that case, the House of Lords found that the property continued to be Mr Qazi's home notwithstanding the fact that the tenancy had come to an end and so Article 8 was engaged. However, the majority (Lords Hope of Craighead, Millett and Scott of Foscote) held that a local authority's proprietary or contractual right to possession could not be defeated by a defence based on Article 8. The dissenting minority (Lords Bingham of Cornhill and Steyn) considered that where there was a proposed interference with a person's right to respect for his home, the question of justification, if raised, did fall to be considered and should, in the instant case, be remitted to the county court.
19.  In the applicants' case of Kay v. Lambeth Borough Council; Price v. Leeds County Council [2006] UKHL 10, the House of Lords revisited Qazi following the Court's judgments in Connors v. the United Kingdom, no. 66746/01, 27 May 2004 and Blečič v. Croatia, no. 59532/00, 29 July 2004 (the latter judgment was subsequently referred to the Grand Chamber which found, on 8 March 2006, that since the case fell outside the Court's temporal jurisdiction, it was unable to take cognisance of the merits of the case).
20.  The majority (Lords Hope, Scott of Foscote and Brown of Eaton‑under‑Heywood and Baroness Hale) held that the judgment in Connors was not incompatible with the view of the majority in Qazi and that a defence in possession proceedings which did not challenge the law under which the possession order was sought but was based only on the occupier's personal circumstances should be struck out. At paragraph 110, Lord Hope set out the test to be applied:
“ ... Subject to what I say below, I would hold that a defence which does not challenge the law under which the possession order is sought as being incompatible with the article 8 but is based only on the occupier's personal circumstances should be struck out ... Where domestic law provides for personal circumstances to be taken into account, as in a case where the statutory test is whether it would be reasonable to make a possession order, then a fair opportunity must be given for the arguments in favour of the occupier to be presented. But if the requirements of the law have been established and the right to recover possession is unqualified, the only situations in which it would be open to the court to refrain from proceeding to summary judgment and making the possession order are these: (a) if a seriously arguable point is raised that the law which enables the court to make the possession order is incompatible with article 8 [“gateway (a)”], the county court in the exercise of its jurisdiction under the Human Rights Act 1998 should deal with the argument in one or other of two ways: (i) by giving effect to the law, so far as it is possible for it do so under section 3, in a way that is compatible with article 8, or (ii) by adjourning the proceedings to enable the compatibility issue to be dealt with in the High Court; (b) if the defendant wishes to challenge the decision of a public authority to recover possession as an improper exercise of its powers at common law on the ground that it was a decision that no reasonable person would consider justifiable [“gateway (b)”], he should be permitted to do this provided again that the point is seriously arguable ...”
21.  Discussing the implications of the Court's judgment in Connors on the decision of the House of Lords in Qazi, he later added (at paragraphs 114 and 115):
“There may, however, be cases like Connors where the incompatibility with the article 8 Convention right lies in primary legislation which the county court is being asked to apply to the case by the public authority ... In such a case it would be open to the High Court to make a declaration of incompatibility, if it was not possible to read or give effect to the legislation under section 3 of the Human Rights Act 1998 in a way which was compatible with the Convention right. But the legislation would nevertheless still have to be enforced, unless the decision of the public authority to seek to enforce it when faced with that incompatibility could be said, when judicially reviewed, to be arbitrary, unreasonable or disproportionate. The decision could not be held in the county court to be an unlawful act within the meaning of section 6 of the 1998 Act: see section 6(2)(b). The fact that the question of incompatibility that was raised in Connors was not capable, under the domestic system, of being dealt with effectively in the county court because of the limits on its jurisdiction reinforces, rather than detracts from, the proposition that a defence which is raised in that court under article 8 should be struck out unless the legislation can be read and given effect in a way that is compatible or it raises an issue as to its incompatibility that ought to be considered in the High Court.
The appellants' right to continue in occupation of premises over which they never had any rights granted to them by the landowner was brought to an end by the operation of law when Lambeth gave notice terminating the leases to LQHT. They have no right to remain there indefinitely, which would be the effect of denying to Lambeth its unqualified right to possession of the premises on the ground that to give effect to this right would be incompatible with article 8. Their interests will be sufficiently protected by the fulfilment of the formal requirements for the eviction, which demand proof by the public authority landowner of its entitlement to obtain an order for possession in the exercise of its property rights. I would dismiss this appeal.”
22.  Lord Scott, also for the majority, expressed the following view (at paragraphs 162 and 169 to 172):
“As to 'procedural safeguards', each of the [appellants] filed a pleading setting out the basis on which his article 8 defence, as well as his domestic law defence, was based. The article 8 defences were given due judicial consideration but were struck out as being incapable of constituting a defence to Lambeth's possession claim. Whatever 'procedural safeguards' are requisite, they cannot bar a court from ruling in a particular case that the pleaded facts and matters relied on are not capable of outweighing in the balance the contractual and/or proprietary right to possession of the owner of the property in question. If the home occupier thinks the judge's ruling to be in error, the ruling can ... be reviewed on appeal, or on an application for permission to appeal.
...
... The possession orders sought by Lambeth engage the article 8 right to respect for the home of the respective occupiers from whom possession was sought. But an order for possession was in accordance with domestic law. As against Lambeth the occupiers had become trespassers with no right to remain in occupation. There was nothing discriminatory or unusual about the statutory and common law framework that produced that result nor about the absence of any statutory protection given to the occupiers by the housing legislation. I respectfully agree with my noble and learned friend Lord Bingham of Cornhill's remarks in para 36 of his opinion that the balance required by article 8(2) to be struck was struck by the general law, that the public authority owner had a right to manage and control its property within the bounds set by statute, that the occupier acquired only a limited right to occupy and that on due determination of that right, a claim by the owner must ordinarily succeed. The appellants ... could not resist Lambeth's possession applications on article 8 grounds unless either they mounted an article 8 attack on the legal framework that entitled Lambeth to possession or they attacked on article 8 grounds Lambeth's decision to seek possession. The first attack was not attempted, and, if it had been, would in my opinion have been bound to fail. There is nothing the matter, from an article 8 standpoint, with a common law rule which gives the owner of property, which is occupied as a home by a person who has no right as against the owner to remain there, the right to recover possession of the property. Parliament's omission to provide any statutory security of tenure for home occupiers in the position in which the [appellants] found themselves is well within the wide margin of appreciation referred to in Blecic.
As to the decision of Lambeth to seek possession of the properties occupied by the [appellants], I agree with and adopt the conclusion expressed by Lord Bingham in para 47 of his opinion. No facts have been pleaded or alleged by the appellants which outweigh the right and the duty of Lambeth to manage its housing stock. The wide margin of appreciation referred to in Blecic must be accorded to Lambeth.
The article 8 defences were struck out by Judge Roger Cooke. They were in my opinion rightly struck out. If a defendant does not plead or allege sufficient facts which, if made good, could constitute a defence, the defence can be struck out. On the facts pleaded and alleged in the article 8 defences the defences could not have succeeded.
Nor, in my opinion, where a home occupier has no contractual or proprietary right to remain in possession as against the owner of the property, could an article 8 defence based on no more than the personal circumstances of the occupier and his family ever succeed. Connors is no authority to the contrary. The successful article 8 defence in Connors was founded on a combination of Mr Connors inability to enjoy the security of tenure advantages afforded by statute to occupiers of privately owned caravan sites and on the Strasbourg court's perception (which I think was an unjustified perception) of a lack of sufficient procedural safeguards enabling him to dispute the grounds which had led the council to terminate his site licence.”
23.  Baroness Hale agreed with the majority, noting (at paragraphs 189 to 190):
“... as I understand it, some of your Lordships would go further and accept that there may be highly exceptional cases in which the occupier could argue that his individual personal circumstances made the application of the general law disproportionate in his case. When, if at all, should the court be able to say that, even though there is no obligation to continue to provide housing in these circumstances, it is not 'necessary in a democratic society' to permit the landowner to assert its property rights?
My Lords, I myself do not think that the purpose of article 8 was to oblige a social landlord to continue to supply housing to a person who has no right in domestic law to continue to be supplied with that housing, assuming that the general balance struck by domestic law was not amenable to attack and that the authority's decision to invoke that law was not open to judicial review on conventional grounds. It should not be forgotten that in an appropriate case, the range of considerations which any public authority should take into account in deciding whether to invoke its powers can be very wide: see eg R v Lincolnshire County Council and Wealden District Council, Ex p Atkinson, Wales and Stratford (1995) 8 Admin LR 529, R (Casey and others) v Crawley Borough Council [2006] EWHC 301 (Admin).”
24.  She concluded (at paragraph 193):
“Each of the cases before us is a classic example of one in which a defence based upon article 8 would have no real prospect of success ... In the Lambeth cases, the occupiers had undoubtedly established homes in the dwellings but they had done so on terms which made them vulnerable, like many sub-tenants, to the superior claims of the landowner. Lambeth's attempts to evict them were in accordance with the law and in pursuit of the legitimate aim of regaining control over this short life housing stock. All the [appellants] were offered alternative accommodation. It would take a very different case from that pleaded to give their claims to remain in the particular dwellings occupied a real prospect of success.”
25.  Lord Brown of Eaton-under-Heywood (at paragraph 198) was of the following view:
“For my part I would accept that the recent Strasbourg jurisprudence requires some qualification to be placed on the Qazi principle; I cannot, however, agree that it requires, as the minority in Qazi suggested, the consideration (even if usually only the most cursory consideration) of an article 8 defence every time it is raised. My opinion is rather, and at this stage I state it very broadly, that although article 8 is clearly engaged in every home repossession case, its requirements are satisfied provided only and always, first, that the substantive domestic law under which the order is sought strikes an acceptable balance between the competing needs and rights at stake and, secondly, that that law is properly applied by the domestic court with the occupier being given a fair opportunity to invoke any defence available to him under it. If either of those two conditions is not satisfied then, I accept, a complaint would properly sound under article 8. But, as I shall seek to show, it by no means follows that article 8 provides the occupier in such cases with a freestanding defence independent of whatever rights he may have under domestic law.”
26.  He concluded (at paragraphs 203 to 204 and 207):
“Of course, where the domestic law requires the court to make a judgment (most notably perhaps in those cases ... where repossession can only be ordered if the court considers it reasonable), or to exercise a discretion, the judge will bear in mind that he is performing this task in the context of the defendant's article 8 right to respect for his home. But where under domestic law the owner's right to possession is plainly made out ..., the judge in my opinion has no option but to assume that our domestic law properly strikes the necessary balances between competing interests (as envisaged in paras 32 and 33 of my noble and learned friend Lord Bingham's judgment) and that in applying it properly he is accordingly discharging his duty under section 6 of the Human Rights Act 1998 ... Where no statutory protection is afforded to occupiers that should be assumed to be Parliament's will: sometimes that will be clearly evident from the terms of the governing legislation ...; even, however, where the owner's rights arise at common law, the absence of statutory protection must surely be, as my noble and learned friend Lord Hope suggests, the result of a deliberate decision by Parliament to leave the owner's right to recover possession in these cases unqualified. As Lord Bingham observes at para 36, it is not unrealistic to regard the general law as striking the required balance.
One of the difficulties I have with the appellants' contended for application of article 8 in these cases is in understanding what sort of 'highly exceptional circumstances' (Lord Bingham's expression at paras 35 and 36) could possibly entitle the county court judge to disregard a clear provision of domestic law so as to deprive the owner ... of his apparently clear entitlement to possession; another is in understanding what are supposed to be the parties' respective rights and interests in the premises once the judge has felt obliged under article 8 to set aside the dictates of domestic law.
...
I too, therefore, would dismiss both these appeals but I would do so for a reason more fundamental than that suggested by certain others of your Lordships. These appellants' defences must fail, not because they disclose no sufficient (highly exceptional) personal merit but because they depend upon establishing a freestanding article 8 right to remain in possession incompatible with the respective claimants' clear entitlement to possession under domestic property law. I would hold that no such freestanding right exists.”
27.  As to the availability of a defence based on conventional judicial review grounds, Lord Brown added (at paragraphs 208 to 209 and 211):
“There is, however, a quite different basis upon which an occupier could challenge a public authority's claim for possession, namely on the conventional public law ground that the decision to bring the claim was itself so unreasonable as to be unlawful. Such a defence can clearly be advanced in the county court ...
The difficulty with such a defence, however, is that it would be well nigh impossible to make good, the challenge necessarily postulating that under domestic property law the claimant authority was entitled to possession. Accordingly the argument could only be that no reasonable public authority could properly invoke that domestic law right. This would be a more stringent test than would apply were the court, as the appellants assert, under a primary duty to reach its own judgment on the justifiability of making a possession order.
..
It is difficult to suppose, however, that a defence based on a public law challenge of this character to a public authority's decision to pursue its domestic law rights could properly succeed except in such an infinitely rare case as Connors itself. Manifestly it could not have succeeded in either of the present cases which doubtless explains why defences of this particular character were not advanced.”
28.  The minority (Lords Bingham of Cornhill, Nicholls of Birkenhead and Walker of Gestingthorpe) considered that occupiers should be able to plead Article 8 as a defence in possession proceedings, although such a defence would only be successful in highly exceptional cases. Lord Bingham (at paragraph 39) described the minority approach as follows:
“The practical position, in future, in possession proceedings can be briefly summarised as follows. (1) It is not necessary for a local authority to plead or prove in every case that domestic law complies with article 8. Courts should proceed on the assumption that domestic law strikes a fair balance and is compatible with article 8. (2) If the court, following its usual procedures, is satisfied that the domestic law requirements for making a possession order have been met the court should make a possession order unless the occupier shows that, highly exceptionally, he has a seriously arguable case on one of two grounds. (3) The two grounds are: (a) that the law which requires the court to make a possession order despite the occupier's personal circumstances is Convention-incompatible; and (b) that, having regard to the occupier's personal circumstances, the local authority's exercise of its power to seek a possession order is an unlawful act within the meaning of section 6. (4) Deciding whether the defendant has a seriously arguable case on one or both of these grounds will not call for a fullblown trial. This question should be decided summarily, on the basis of an affidavit or of the defendant's defence, suitably particularised, or in whatever other summary way the court considers appropriate. The procedural aim of the court must be to decide this question as expeditiously as is consistent with the defendant having a fair opportunity to present his case on this question. (5) If the court considers the defence sought to be raised on one or both of these grounds is not seriously arguable the court should proceed to make a possession order. (6) Where a seriously arguable issue on one of these grounds is raised, the court should itself decide this issue, subject to this: where an issue arises on the application of section 3 [of the Human Rights Act 1998] the judge should consider whether it may be appropriate to refer the proceedings to the High Court”.
29.  As for the disposal of the appeal, however, he considered that on the facts of the present case the matter need not be remitted to the county court, concluding (at paragraph 47):
“The question then arises whether these cases should, even after this lapse of time, be remitted to the county court for consideration whether eviction is necessary in a democratic society, as that expression has been defined in the Strasbourg jurisprudence. I would favour that course if there appeared any reasonable prospect of the court deciding that it was not necessary. But it is clear that under domestic property law the appellants have no right to occupy their respective premises, of which the local authority has an unqualified right to possession. The appellants fall outside the categories to which Parliament has extended a measure of protection. The local authority has no duty to accommodate the appellants, but has a power and duty to manage its housing stock. The appellants have not pleaded or alleged facts which give them a special claim to remain. I am satisfied that if these cases were remitted, possession orders would necessarily be made ...”
30.  In 2008, the House of Lords handed down its decision in Doherty v. Birmingham City Council [2008] UKHL 57 shortly after the Court's judgment in McCann v. the United Kingdom, no. 19009/04, 13 May 2008. The House affirmed Kay and sought to clarify the position set out in that judgment, in light of the Court's decision in McCann. Lord Hope (at paragraphs 52 to 53 and 55) provided, in particular, the following clarifications of the “gateways” available for defendants to challenge possession orders, as explained in Kay:
“As I said earlier, the speeches in Kay show that the route indicated by [gateway (b)] is limited to what is conveniently described as conventional judicial review. In para 60, for example, Lord Nicholls indicated that he had in mind a challenge in accordance with Wandsworth Borough Council v Winder [1985] AC 461 on grounds which, he said, had nothing to do with the Human Rights Act 1998. In para 208 Lord Brown too acknowledged that this was a quite different basis from that which the Act provides upon which a public authority's claim for possession could be challenged. In para 110 of my own speech I described this as a challenge that would be made at common law, on the ground that the decision was one that no reasonable person would consider justifiable. In para 114 I said that the grounds on which the decision to claim possession could be judicially reviewed were whether it was arbitrary, unreasonable or disproportionate.
Gateway (b) then asserts that in possession cases brought by a public authority a defence which takes the form of a challenge to its decision to seek possession may be available. The court is not bound to make the order if the decision to seek it can be challenged on the ground that it was an improper exercise of the respondent's powers. In this respect the two routes, or 'gateways', may be said to work together to address the incompatibility due to the lack of a procedural safeguard, which is the fundamental point that is at issue in this case. Gateway (a) addresses the question whether the court can read and give effect to the statutes in a way that is compatible with article 8. If it cannot do this, it will be open to the defendant by way of a defence to argue under gateway (b) that the order should not be made unless the court is satisfied, upon reviewing the respondent's decision to seek a possession order on the grounds that it gave and bearing in mind that it was doing what the legislation authorised, that the decision to do this was in the Wednesbury sense not unreasonable. This route offers a procedural protection under the common law. If taken, it will enable the grounds on which the respondent based its decision to be scrutinised. It might, on the facts of this case, provide the appellant with an effective defence to the making of the possession order. The fact that it is available as a defence seems to me to strengthen the argument, should it be needed, that it also provides him with the protection which he seeks against an infringement of his Convention right.
...
I think that in this situation it would be unduly formalistic to confine the review strictly to traditional Wednesbury grounds. The considerations that can be brought into account in this case are wider. An examination of the question whether the respondent's decision was reasonable, having regard to the aim which it was pursuing and to the length of time that the appellant and his family have resided on the site, would be appropriate. But the requisite scrutiny would not involve the judge substituting his own judgment for that of the local authority. In my opinion the test of reasonableness should be, as I said in para 110 of Kay, whether the decision to recover possession was one which no reasonable person would consider justifiable”.
31.  Clarifying the difference between the minority and minority approaches in Kay, he said (at paragraph 42):
“As I said in para 109 of my opinion in Kay, and again at the outset of para 110, a defence to a possession order which does not challenge the law under which it is sought but is based only on the personal circumstances of the occupier should be struck out. The personal interests safeguarded by article 8 must be taken to have been sufficiently safeguarded by the fulfilment of the requirements for the recovery of possession by the landowner laid down by the statute or by the common law. That is the basic law that was established in Qazi and it is the point on which the majority in Kay differed from the minority: see ground (3)(b) in para 39 of Lord Bingham's opinion.”
32.  Lord Scott also considered the minority view in Kay, as set out by Lord Bingham, and compared it to Lord Hope's test in Kay, concluding (at paragraph 70) that:
“...The only proposition which is in any respect inconsistent with the majority opinions is proposition 3(b) and the inconsistency there is slight though important. Proposition 3(a) covers the same ground as Lord Hope's paragraph 110 gateway (a). But proposition 3(b) attributes to the occupier's personal circumstances a central importance that the majority opinions did not accept. The view of the majority, as expressed by Lord Hope in his gateway (b), was, as I have explained, that a local authority's decision to recover possession would be open to challenge on public law grounds and that the challenge could be raised as a defence in the possession proceedings. The personal circumstances of the defendant might well be a factor to which, along with the other factors relevant to its decision, a responsible and reasonable local authority would need to have regard. The question for the court would be whether the local authority's decision to recover possession of the property in question was so unreasonable and disproportionate as to be unlawful.”
33.  He disagreed with a passage in the decision of the Court of Appeal in the case under consideration, noting (at paragraph 76) that:
“...the sentence 'Under gateway (b) the council's action was open to challenge on conventional judicial review grounds, but not on the grounds that it was contrary to Article 8' suggests a disharmony between 'conventional judicial review grounds' on the one hand and Article 8 on the other hand that I do not accept.”
34.  In an addendum prepared following the release of the Court's judgment in McCann, Lord Scott emphasised (at paragraphs 84 to 85) that:
“... Local authorities, being public authorities, are obliged by section 6(1) of the Human Rights Act 1998 to act in accordance with the Convention rights incorporated by the Act into domestic law. They are obliged when deciding to terminate tenancies and recover possession of residential properties to act consistently with article 8. If a decision, for example to serve a notice to quit, is inconsistent with the article 8 rights of the person on whom it is served the decision would be unlawful and the notice to quit devoid of effect. Lord Hope's paragraph 110 establishes that a point of that sort can be raised as a defence to the possession proceedings. Such a defence would, if raised, be dealt with by a county court judge as part of the possession proceedings ...
... An article 8 defence requires the judge to review the lawfulness of the local authority's decision to recover possession of the property in question and, in doing so, to review the factors that a responsible local authority ought to have taken into account in reaching its decision. The proportionality of the decision in all the circumstances of the case would be central to the review and if the local authority's decision could be shown to be outside the range of reasonable decisions that a responsible local authority could take, having regard both to the circumstances of the defendant as well as to all the other relevant circumstances, the decision would be held to be unlawful as a matter of public law. But in a case in which it is not reasonably arguable on the face of the pleadings, or from the contents of the affidavits that have been filed, that that is so, the judge can be expected to make a summary order for possession. The adjective 'summary' in this context does not mean that the judge would not have considered the proportionality of the requested possession order. It means that the article 8 case put forward by the defendant for a conclusion that a possession order would be disproportionate is not, in the opinion of the judge, capable of being sustained by serious argument. The notion that a defence based on an article 8 right to respect for a home requires the case to proceed to a full trial even though it is apparent that the defence cannot succeed is clearly absurd. An application for a summary judgment does require the defendant's contention that a possession order would be disproportionate to be given proper attention and, if reasonably arguable, to be permitted to proceed to a full trial.”
35.  Lords Walker and Mance both drew attention to the fact that the majority in Kay had drawn an important distinction between human rights and traditional judicial review challenges. Lord Walker noted (at paragraphs 107 to 108) that:
“... As one of the minority in Kay, I must accept the decision of the majority, which distinguishes between grounds of judicial review which are based on the HRA [Human Rights Act] and grounds ('common law' or 'conventional' grounds) which are not based on the HRA. The minority accepted the view of Lord Bingham of Cornhill ... that article 8 might, highly exceptionally, provide a tenant or licensee with additional protection. Lord Hope, in the leading speech for the majority, disagreed (para 110). So did Lord Scott (para 172), Baroness Hale (paras 189-190) and (most emphatically) Lord Brown (paras 207-208).
... I think that I may properly express unease and indeed incomprehension at the suggestion, which is at least implicit in this part of the decision, that HRA grounds and traditional judicial review grounds can always be separately identified.”
36.  Lord Mance observed (at paragraphs 133 to 136) that:
“... Gateway (b), as expressed in paragraph 110 in Kay was, as I see it, phrased so as to exclude any direct application of the Convention rights or of the Strasbourg Court's test of proportionality, and to confine attention to common law grounds for judicial review, informed though they may increasingly be by ideas of fundamental rights: see also per Baroness Hale of Richmond at paragraph 190 and Lord Brown of Eaton-under-Heywood at paragraphs 208-211, and contrast the approach of the minority as set out in paragraph 39 of Lord Bingham of Cornhill's speech in Kay.
The general distinction which thus emerges is recognised and described in R (Daly) v. Secretary of State for the Home Department [2001] UKHL 26 ... per Lord Steyn (para. 27) and Lord Cooke of Thorndon (para. 32, recognising though regretting the distinction) and in R (ABCIFER) v. Secretary of State for Defence [2003] EWCA Civ 473 ... paragraphs 32 to 37, where Dyson LJ, giving the judgment of the Court of Appeal, said that any abandonment of the common law's Wednesbury unreasonableness test for a proportionality test was a step which could only be taken by this House. Other potential differences between conventional (or 'domestic') judicial review were discussed in R (SB) v. Governors of Denbigh High School [2006] UKHL 15 ... (see in particular per Lord Hoffmann at para. 68) and Belfast City Council v. Miss Behavin' Ltd. [2007] UKHL 19 ...
The difference in approach between the grounds of conventional or domestic judicial review and review for compatibility with Human Rights Convention rights should not however be exaggerated and can be seen to have narrowed, with 'the “Wednesbury” test ... moving closer to proportionality [so that] in some cases it is not possible to see any daylight between the two tests' (ABCIFER, para. 34, citing an extra-judicial lecture by Lord Hoffmann) ... Even so, as the subsequent history of ex p.Smith demonstrates, the result may not always achieve the degree of protection for Convention rights which the Strasbourg Court requires: Smith and Grady v. United Kingdom (1999) 29 EHRR 493. So there remains room in another case to reconsider how far conventional or domestic judicial review and Convention review can be further assimilated, and in particular whether proportionality has a role in conventional judicial review. This was not, however, argued on the present appeal, and, in common I understand with the majority of your Lordships, I do not consider that it is appropriate to embark on such a review on this appeal.
On this basis, in circumstances such as those in Kay, the only question under gateway (b) as expressed in Kay is whether the public authority's decision can be challenged on domestic judicial review grounds, in particular as having been based on material misconceptions or improper considerations or as unreasonable, either in the Wednesbury sense or in a more relaxed sense which takes full account of the basic interest which any occupant has in his or her home. In other words, in circumstances such as those in Kay, a full Convention review is not, at least nominally, possible on the majority view taken in Kay.”
37.  Lord Mance concluded (at paragraphs 162 to 163):
“However, I for my part regret that it has not been possible on this appeal to agree to modify gateway (b) in paragraph 110 more generally, so as to allow express regard to be had to Human Rights Convention principles in relation to any defence raised against a public authority under the rule in Wandsworth LBC v. Winder, whether in circumstances such as those in Qazi, Connors, Kay and McCann or in circumstances such as the present. In paragraphs 19, 36 and 55 of his speech my noble and learned friend Lord Hope mentions the need to take account of any judgment of the Strasbourg Court and to give practical recognition to the principles that it lays down, and states that this can be done in the present circumstances by to some extent modifying the reasoning of the majority in Kay. At the same time, he rejects the suggestion that the House should depart from the majority view in Kay in favour of the minority, believing that this would create very real practical problems: paragraphs 19 to 20.
For my part, I am not persuaded that any significant problems would or need arise, as Convention-compliant statutory schemes are developed and public authorities become accustomed to tailoring their performance of their duties to Convention values. In a large number of cases, County Courts already tackle sensitive issues of reasonableness, as well as issues regarding breach of conditions of occupancy, when deciding whether to make or suspend possession orders; The limited modification that my noble and learned friend Lord Hope would make to gateway (b) of paragraph 110 (see paragraph 55) would add to such cases a further category in which review on traditional Wednesbury grounds was relaxed to become a more straightforward examination of reasonableness. If County Courts can handle such issues in possession claims, there is no reason to doubt their ability to tackle, robustly and with due despatch, the largely parallel issues which would arise from any direct application of the Convention principles in cases of challenges to public authority decisions to seek possession.”
e.The Court of Appeal post-Doherty
38.  The Court of Appeal has recently considered the application of the gateway (b) defence in three cases: Doran v Liverpool City Council [2009] EWCA Civ 146; McGlynn v. Welwyn Hatfield District Council [2009] EWCA Civ 285; and Central Bedfordshire Council v. Taylor and others [2009] EWCA Civ 613. In Doran, considering the effect of the ruling in Doherty, Lord Justice Toulson stated (at paragraphs 49 to 52):
“First, there is no formulaic or formalistic restriction of the factors which may be relied upon by the licensee in support of an argument that the council's decision to serve a notice to quit, and seek a possession order, was one which no reasonable council would have taken. Such factors are not automatically irrelevant simply because they may include the licensee's personal circumstances, such as length of time of occupation. In Doherty, where the family had been in occupation for a substantial time without causing any trouble, but the council wanted to use the site in a different way, it might also be thought relevant whether the council had taken any steps to offer the family, or help them to acquire, alternative accommodation.
Secondly, the question whether the council's decision was one which no reasonable person would have made is to be decided by applying public law principles as they have been developed at common law, and not through the lens of the Convention.
...
Having said that the question whether the council's decision was unreasonable has to be decided by applying public law principles as they have been developed at common law, it is to be remembered that those principles are not frozen. Even before the enactment of the HRA, our public law principles were being influenced by Convention ways of thinking. Since its enactment, the process has gathered momentum. It is now a well recognised fact that the Convention is influencing the shape and development of our domestic public law principles, whether one uses the metaphors of embedding, weaving into the fabric, osmosis or alignment. (See the judgment of Lord Walker in Doherty at para 109).”
39.  The Court of Appeal in McGlynn v. Welwyn Hatfield District Council reiterated Toulson LJ's interpretation of Doherty.
40.  Subsequently, in Central Bedfordshire Council v. Taylor, Lord Justice Waller noted, at paragraphs 11 to 12, as follows:
“But it is important to keep in mind that in Doran the court was concerned with a traveller and his eviction from a caravan site; the circumstances were thus similar to those being considered in Doherty but are far removed from the circumstances of the instant cases, which are very close to those which existed in Kay. I emphasise that point because although it can be said that Doran encourages the view that the personal circumstances of Mr Doran may not be irrelevant in considering a local authority's decision to serve a notice to quit, it will be necessary to go back to Kay and consider Doherty's impact on Kay where the circumstances are as in Kay and as they are in the instant cases. Doran would however suggest that in conducting a review of the council's decision Doherty has held that something wider than the Wednesbury rationality test was appropriate. In Doran (it is right to say) despite similarities with the circumstances in Doherty, unlike the House of Lords in Doherty, the court of appeal found that there was no purpose in remitting the matter because it was not arguable that the council acting reasonably could have come to any different decision.
In McGlynn the court was concerned with the termination of a tenancy by a local authority on the grounds of anti-social behaviour. The court held it was 'an unusual case' and that Mr McGlynn had a seriously arguable public law defence based on it being arguable (i) that a reasonable council would after service of the notice to quit have made further investigations as to whether there was further anti-social behaviour and (ii) that there had been a failure by the local authority to make those further investigations. The circumstances of McGlynn are far removed from the instant cases.”
41.  He continued (at paragraph 22):
“Two things are not in dispute which I emphasise at the outset. The decision of a public authority can be made the subject of judicial review and in the context of possession claims in the county court, the correct forum for that review, if an arguable point is raised, is the county court itself. Second even if in Kay Lord Hope intended gateway (b) to be confined to what I might term a 'rationality' challenge, in his speech in Doherty Lord Hope intended to extend to some extent the scope of judicial review beyond rationality even if not as far as a straightforward challenge by reference to the convention.”
42.  Waller LJ set out the position as follows (at paragraphs 40 to 41):
“An authority such as the council in the instant appeals may make a decision on the facts as known to it to send a letter seeking possession. Prima facie it has no obligation to find out what the true facts are and the burden is going to be on the occupier to demonstrate any grounds relied on as providing an Article 8 defence. If the occupier informs the public authority of relevant circumstances, the public authority will have to take a further decision as to whether to commence proceedings. If no letter is received and the facts are only divulged just prior to the hearing, the public authority in reality has to take a further decision as to whether to proceed. Indeed if the revelation is only during the hearing, the council in deciding to continue to press for an order takes yet a further decision. I do not see why if any one of these decisions could be shown to be 'unreasonable' whatever that means (and I will come back to that), it could not be attacked.
If that is an appropriate analysis, because the county court is seized of the matter, it will be able to see whether there is an arguable case that in deciding even with the revelation of further facts to continue to seek possession is unreasonable. If 'reasonableness' connotes something wider than rationality, that will be very close in reality to the court itself examining a defence based on Article 8.”
43.  He concluded (at paragraphs 43 to 46):
“The law gives an owner of land the right to obtain possession against a trespasser. But the owner, if the occupier has his home on the land in question, cannot obtain possession other than through proceedings in court. The court has to satisfy itself as to the owner's rights but can in making an order for possession pay regard to the personal circumstances of the occupier. Statute circumscribes the court's powers in certain cases ... and in others does not do so. In cases such as the present and Kay, the court simply has a discretion whether to suspend the order for possession for a short period.
It follows that I would accept that the question whether a decision of a public authority is 'reasonable' post-Doherty goes beyond the question whether it is rational. I would also accept that a public authority should take account of the personal circumstances of the occupier known to it, but it does not follow from this that there will ever be circumstances in which it will be unreasonable to seek possession against trespassers in situations similar to those in Kay. Those situations may make it unreasonable not to allow a period of time to bring the possession order sought into effect but that is something which the court oversees and which the law allows for.
...
Ought we to remit in this case? In my view it would, just as in Kay, not be appropriate to do so. To echo the words of Lord Bingham in Kay, it is clear that under domestic property law the appellants have no right to occupy their respective premises, of which the council has an unqualified right of possession. The appellants fall outside the categories to which Parliament has provided protection. The council has no duty to accommodate the appellants and has a duty to manage its assets. The appellants have put in a draft pleading before us, but it does not allege any facts which provide some special claim to remain. If the matter were remitted the court would be bound to make an order for possession, although it would be entitled to take account of the personal circumstances in considering the time at which the order would be effective. That latter is something we could do without remission.”
44.  In Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223, Greene MR noted as follows:
“It is true the discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretions often use the word 'unreasonable' in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting 'unreasonably'. Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority.
...
...the task of the court is not to decide what it thinks is reasonable, but to decide whether what is prima facie within the power of the local authority is a condition which no reasonable authority, acting within the four corners of their jurisdiction, could have decided to impose ...
... The court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought not to take into account, or, conversely, have refused to take into account or neglected to take into account matters which they ought to take into account. Once that question is answered in favour of the local authority, it may be still possible to say that, although the local authority have kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the court can interfere. The power of the court to interfere in each case is not as an appellate authority to override a decision of the local authority, but as a judicial authority which is concerned, and concerned only, to see whether the local authority have contravened the law by acting in excess of the powers which Parliament has confided in them.”